what sort of
CONTRACT WILL
YOU BE SIGNING?

"She'll be right, mate. I'll drop by with the camera sometime tomorrow and see what we can do." While this may be the stuff of legendary Aussie characters, it is hopefully rapidly becoming a dim memory for today's professional photographer.

A large part of that professional attitude is our use of appropriate paperwork to verify the details of commissions. Written estimates, detailed contracts including terms and conditions, clear interpretation of usage, licence and copyright are all part of this. If we as photographers simply stick our heads in the sand and ignore the issue, it will NOT just go away. Our clients or their agencies will be forced to take the initiative and produce their own contracts for us to sign. This is fair enough too. After all, from a client's perspective they are getting conflicting information from a variety of sources. They are not sure what they are buying or what they are entitled to and producing a written contract is the only way to bring some clarity and security to the situation. If you have seen such a contract you will know why the issue has become so very important. A client or agency's contract will often require us to sign away all rights to the images we produce, just for the privilege of working with that client. We must set the agenda. We must be prepared to set the terms under which we practice our craft.

WHO OWNS COPYRIGHT?

The law relating to the copyright of commercial photographs was amended in Federal parliament in July 1998 and affects all commercial photographs taken after 1st August 1998.

It states "In the absence of an agreement to the contrary, the copyright of a commissioned commercial photograph is owned by the photographer."

The government had recognised that photographers were being disadvantaged in the marketplace and in the areas occupied by other artists.

The amendments, which came only after years of lobbying by both the ACMP and the AIPP, brought Australian photographers into line with the majority of international photographers and other Australian professional creatives such as Graphic Designers, Illustrators, Artists, Actors and Musicians.

DOES THIS CHANGE THE WAY PHOTOGRAPHERS AND CLIENTS WORK TOGETHER?

Not necessarily. Written contracts should simply result in both parties being clear about the job details. Verbal agreements can be quickly forgotten or misunderstood. Especially if there is disagreement later on. Worldwide, photographers are using contracts, work agreements or terms of trade to clearly establish the requirements of the job and the estimated costs involved. It's a logical extension to determine the ownership and the agreed usage of the shots, before the shots are actually taken. Written contracts protect the rights of both clients and photographers, as well as bring our industry up to more acceptable standards of quality assurance.

BUT WHAT IF THE PICTURE WASN'T MY IDEA?

Often as commercial or advertising photographers we are asked to take pictures that have their genesis as someone else's idea. It may have been a sketched layout by an art-director. It could have been based on a painting or a cartoon or any of a number of visual sources. Copyright does not apply to an idea, but to the EXPRESSION of that idea. The sketch or the painting is one way of expressing an idea, a photograph along the same theme is quite another. Both expressions of the idea would be covered by their own copyright.

This doesn't mean that you can literally copy someone else's work. I'm sure almost every advertising photographer in Australia has lost count of the number of times an art director has tossed down a photocopy of an ancient "CA" and said "That's what I want". To copy the picture as you see it would be unethical and an obvious breach of copyright. Despite being so prepared to blatantly rip off another photographers copyright, the same "creative" (if that really is the right term) will bleat for possession of the copyright when a photo is based on their own napkin-sketch!

Good commercial photography is usually the result of collaboration and teamwork. Clients, designers, art directors, writers, photographers and printers all work together to ensure the final result is successful and meets its stated aims. Ultimately however, the quality of this particular "expression of the idea" will depend on the expertise and the input of the photographer concerned. By the time the job is completed it may be protected by a number of copyrights. These rights may relate, for example, to the model or object that was actually photographed, the written words, the design and layout, the photograph, right through to the actual publication that the work appears in.

WHAT DO ALL THE WORDS MEAN?

In using written agreements you may come across a number of unfamiliar terms relating to the issue of copyright. We need to understand what each of these mean in order to be able to use them with confidence. These words should be as comfortable to deal with as old favourites such as "f-stops" and "roids". Only then will we be able to deal in a relaxed and open way with our clients.

Generally, when negotiating with a client, the term "Copyright" need not even be mentioned. Given that you already own the images by virtue of the fact you created them, what you are really there to discuss is the way your client wants to use them.

USAGE is the first thing to determine. This refers to how and where the image is to be used. Usage may be determined in a number of ways, including any or all of the following:

The MEDIUM is the form the final usage takes, such as a brochure, annual report, poster, web site or whatever.

The TERRITORY may also be stipulated under usage. This refers to how widely the image will be used, whether in one state only, throughout Australia or worldwide.

The TIME or DURATION that an image is used for may also be open to negotiation. This could be as precise as a particular issue of a newspaper, or for an extended period. It is common for the client to have exclusive use of an image for an agreed period of time. Eg. Exclusive right to use an image in an annual report in New Zealand for 12 months.

The word LICENCE sums up these various conditions under which the client is going to use the picture. In general terms, the broader or more relaxed the conditions of usage, the more the client could expect to pay. Alternatively, if the job has a tight budget, then a photographer may agree to still take the job but place strict limitations over the usage. This way the photographer has an opportunity to re-coup the true value of the work they put in, if the client later purchases a different usage.

If that is the case, then we describe the client as paying RESIDUALS or ROLL-OVERS for an extension of the licence, or for a new licence. How much the licence costs will again depend on the usage and is usually calculated as a percentage of the original photographic fee or BASE USAGE RATE.

A BUYOUT is the complete transfer of ownership of the picture from the photographer to the client for an agreed fee after which the photographer has no further rights or title to the photograph whatsoever. Passionate photographers liken this to selling their own children. It's not even an option. If you were to do this, strictly speaking you forfeit even the right to use the image for self-promotion. Imagine seeing your precious picture in a magazine with your clients name on the by-line! Most photographers value their copyright highly and so for most commercial situations this becomes an unnecessarily expensive option for the client. Clients very rarely require total ownership to achieve their purposes, and buying the appropriate usage is the way to go

This website copyright 2005 ACMP - PO Box 779 North Sydney NSW 2060 Australia
Ph. +61 2 9025 3975    Fx. +61 2 9025 3990 Email: secretary@acmp.com.au
All individual photographs copyright the photographer concerned